04jan04

Some fear Iraqi judges don't grasp complexity of war crime trials.

Judge Qasem Ayash, one of 100 Iraqi jurists fresh out of a crash course in international
law, says it was a waste of time.

"I have been a judge for 32 years and they are teaching me the ABCs of law? I ought to
be teaching them," the head of the Appellate Court says with contempt after attending the
two-week course organized by the U.S. Defense Strategy for International Studies.

Has he ever tried a war criminal? No.

Would he sit on a tribunal trying Saddam Hussein and others? No again. Ayash notes that
several judges thought to be working with the Americans have been murdered. The fear
among jurists is that Saddam's supporters would kill them just for sitting in judgment on the
ousted dictator.

This is exactly what worries human rights groups and international jurists. They fear that
the Iraqi judiciary, after four decades under the thumb of the Baath regime, has neither the
experience nor the expertise to conduct a complex trial for crimes against humanity. They
say only a U.N.-led tribunal has international legitimacy and can guarantee fair trials.

Ayash, 62, doesn't see the problem. "They will bring the accused; they will bring his file.
The judge reads it carefully and decides whether he ought to be charged or not," he said.

"There's nothing to it. It's like trying any other criminal case."

It's not that simple, say those with experience of war crimes trials.

Typically, they say, trials before Iraqi criminal courts lasted a few days -- sometimes just
a morning, or even an hour. And courts often handled 20 to 30 cases a day.

"It just shows you the summary nature of the trials which took place and that's the norm
and that's not being questioned by the judges," said Hania Mufti, of the New York-based
Human Rights Watch. "Therefore, what kind of standards are they thinking of using in
terms of these hugely complex cases?"

Iraqi judges and lawyers, as well as U.S. officials here, insist Iraqis can handle it because
they're recovering a long tradition of independence and impartiality -- sometimes even
under Saddam's repressive rule. And if they need any outside help, they say, they'll ask
for it.

Three days before Saddam was captured by U.S. forces on Dec. 13, the Iraqi Governing
Council announced the creation of a war crimes tribunal to try former members of
Saddam's Baath regime on cases stemming from mass executions of Iraqi Kurds in the
1980s, as well as the suppression of uprisings by Kurds and Shiite Muslims after the 1991
Gulf War.

The Iraqi statute, drafted by Iraqi and American lawyers, emulates the International
Criminal Court and provides for foreign judges to join the bench if the Governing Council
so wishes.

But Iraqi officials say they're determined to be in charge and to seek outside help in areas
where they lack expertise, such as in pre-trial investigations and forensic data.

"The presence of foreign judges will undermine (Iraqi) sovereignty and would undercut the
value of the Iraqi judiciary," said Iraq's justice minister, Hashim Abdul-Rahman al-Shalabi.

Human rights groups are voicing concern that the statute allows for the death penalty, and
Ayash isn't the only judge who is declining to take part for fear of his own safety. But Iraqi
officials close to the Governing Council say extensive protection systems are planned for
witnesses and court officials.

Salem Chalabi, legal adviser to the Governing Council, says the judges are beginning to
grasp how different the tribunal will be from what they are used to. "I told them, you are
going to have six hours a day, day in, day out," he said.

The tribunal is headed by Dara Nouredin, a Kurd who was a judge under Saddam until he
was imprisoned. He said those who criticize the Iraqi judiciary don't know it well.

"We have good judges who are capable of conducting these trials. Also, there is a training
course for the judges on working with evidence of ugly crimes of such magnitude," he said.

Iraqis refer to the period between 1930 to 1960 as a golden age for their judiciary, when
it functioned independently under a system derived from French, Turkish and Islamic law.

But after the Baathists came to power in 1965, the courts gradually came under
government control. The president took the power to appoint judges. Prospective judges
had to attend an academy, and Baath Party members were preferred. Special security
courts under the jurisdiction of the secret police were set up to handle espionage, treason
and other "anti-state" activities.

"Nobody can argue that the judiciary wasn't decimated or weakened during the Baath
regime," said Salem Chalabi. "But it had a tradition of independence and had really decent
judges."

In fact some of the decent ones were fired and even jailed for issuing sentences that
displeased the government. And "many judges issued verdicts in a such a crafty way that
Saddam could not touch them," recalled Mohammed Dohan, 83-year-old head of the
Lawyers' Syndicate.

A judicial review committee set up by the coalition has fired 160 of Iraq's 700 judges for
their close ties to the Baath party or being corrupt or incompetent. The review continues.

Under Iraqi law, judges do the questioning and lead the case, not the prosecution, whose
task is merely to make sure the judge acts within the law.

Salem Chalabi said that under tribunal rules, prosecutors and judges together will conduct
the cases and prosecutors will oversee the judges during the investigation phase.

Much of the investigative work will be handled by international legal experts, Chalabi said,
and international monitors will make sure appropriate decisions are made and cases aren't
rushed.

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